JUDGE AS TRUSTEE OF FAMILY TRUST AND

AS BUSINESS PARTNER OF AUNT AND COUSINS

Opinion No. 151 (1993)

QUESTION: May a judge handle her family's business interests, some of which are held in trust and in partnerships with an aunt and several cousins?

ANSWER: Yes. Canon 5C(1), (2), and (3)* allow this activity if the business is not a publicly owned business, does not require the judge's frequent disqualification from cases, does not reflect adversely on the judge's impartiality, does not interfere with the proper performance of judicial duties, does not exploit her judicial position, and does not involve the judge in frequent transactions with lawyers or others likely to come before the judge's court. The affirmative answer to this question assumes that none of these conditions will occur.

Further, a judge may serve as a fiducial for a member of her own family, if such service will not interfere with the proper performance of judicial duties. This affirmative answer is subject to the conditions stated in Canon 5D,** i.e., the judge should not serve if her fiduciary duties will engage her in proceedings that "that would ordinarily come before the judge, or if the estate, trust, or ward would become involved in adversary proceedings in [her] court or one under its appellate jurisdiction."

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* Now see Canon 4D(1), (2), and (3).

** Now see Canon 4E.

JUDGE AS TRUSTEE OF NONPROFIT CEMETERY TRUST ASSOCIATION

Opinion No. 152 (1993)

QUESTION: May a judge serve as trustee for a Cemetery Trust Association that is non-profit, meets once a year to approve investments made, and to advise on future investments?

ANSWER: A judge may serve, but should not approve investments made or advise on future investments. Canon 5B(3)* provides that a judge should not give investment advice to such an organization, but may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions. The same canon provides that a judge may serve as an officer, director, trustee, or nonlegal advisor of an organization not conducted for the economic or political advantage of its members, subject to the following limitations:

1. A judge should not serve if it is likely the organization will be engaged in proceedings that would come before her or would be regularly or frequently engaged in adversary proceedings in any court.

2. A judge shall not solicit funds for such organization but may be listed as a trustee and may be a speaker or guest of honor at an organization's fund raising events.

3. A judge should not give investment advice to such an organization. Canon 5B** provides that a judge may participate in civic and charitable activities that do not reflect adversely upon her impartiality or interfere with the performance of judicial duties, and Canon 2B provides that a judge should not lend the prestige of her office to advance the private interests of herself or others. Subject to these conditions, such service is allowed under the code. See Judicial Ethics Opinions Nos. 57, 70, and 144.

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* Now see Canon 4C(3).

** Now see Canon 4C.

JUDGE AS LESSOR OF LAW OFFICE TO ATTORNEYS PRACTICING IN HER COURT

Opinion No. 153 (1993)

QUESTION: May a judge lease her former law office, of which she is the sole owner, directly to attorneys who will be practicing in her court?

ANSWERS: No. Canon 5C(1)* provides that a judge should refrain from business dealings that tend to reflect adversely on the judge's impartiality, interfere with the proper performance of judicial duties, exploit her judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before her court. The committee believes that such a relationship constitutes a business dealing that falls within this prohibition. Because the judge's ownership interest is large, the relationship may create the appearance of impropriety.

Canon 5C(3)** provides that a judge should manage her investments and other financial interest to minimize the number of cases in which she is disqualified. As soon as the judge can do so without serious financial detriment, she should divest herself of investments and other financial interests that might require frequent disqualification. See Judicial Ethics Opinion No. 129.

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* Now see Canon 4D(1).

** Now see Canon 4D(3).

EX PARTE COMMUNICATIONS FROM LITIGANTS

Opinion No. 154 (1993)

QUESTION: What is a judge's ethical obligation upon receiving from a litigant a letter which attempts to communicate privately to the judge information concerning a case that is or has been pending.

ANSWER: Canon 3A(5)* provides that a judge shall not permit or consider improper ex parte or other private communication concerning the merits of a pending or impending judicial proceeding. (Canon 10** provides that the word "shall" when used in the Code means compulsion.) Judges may comply with Canon 3A(5)* by doing the following: 1) Preserve the original letter by delivering it to the court clerk to be file marked and kept in the clerk's file.  2) Send a copy of the letter to all opposing counsel and pro se litigants.  3) Read the letter to determine if it is proper or improper; if improper, the judge should send a letter to the communicant, with a copy of the judge's letter to all opposing counsel and pro se litigants, stating that the letter was an improper ex parte communication, that such communication should cease, that the judge will take no action whatsoever in response to the letter, and that a copy of the letter has been sent to all opposing counsel and pro se litigants.

Canon 3A(4)* provides that a judge shall accord to every person who is legally interested in a proceeding the right to be heard according to law. Consideration of an ex parte communication would be inconsistent with Canon 3A(4),* because it would not accord to other parties fair notice of the content of the communication, and it would not accord to other parties an opportunity to respond.

Canon 3*** provides that the judicial duties of a judge take precedence over all the judge's other activities. A judge's consideration of a controversy that is not brought before the court in the manner provided by law would be inconsistent with the judicial duty to determine "cases" and "controversies" (Art. 3, Constitution of the United States). A judge has no authority or jurisdiction to consider, or to take any action concerning, out-of-court controversies. A judge's consideration of a controversy that is not properly before the court could give the appearance of inappropriate action under color of judicial authority, which would tend to diminish public confidence in the independence and impartiality of the judiciary, rather than promote it as Canon 1 and Canon 2 require a judge to do.

Finally, a judge should try to minimize the number of cases in which the judge is disqualified. If a judge permits a communication to the judge concerning any matter that may be the subject of a judicial proceeding, that could necessitate disqualification or recusal.

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* Now see Canon 3B(8).

** Now see Canon 8B(1).

*** Now see Canon 3A.

ACTIVITIES OF RETIRED JUDGES

Opinion No. 155 (1993)

QUESTION 1: May a retired judge who is subject to assignment do the following things?

a.  Lawyer Activities: (1) appear in court as a lawyer; (2) practice law without appearing in court; (3) use judicial title; (4) be "of counsel" to a business.

b.  Other Than in Law Practice, Use Former Judicial Title in Directories, on Stationery or Business Cards:  (1) for judicial purposes; (2) for business and social purposes.

c.   Political Activities: (1) publicly endorse another candidate for office; (2) work on a political campaign.d.  Raise Money for Charities.

e.  Activities Governed by Law: (1) perform weddings; (2) administer oaths; (3) disregard financial disclosure requirements.

ANSWERS TO QUESTION 1: (Retired Judges Subject to Assignment):

a.  Lawyer Activities

     (1) Appear in Court As a Lawyer.  No ethical question is presented, because under Government Code Section 74.055 every judge who is eligible for assignment has certified the judge's willingness not to appear and plead as an attorney in court.

    (2) Practice Law Without Appearing in Court.  Yes, but subject to the provisions of Canons 2, 2B, 5,* and 5C (1) and (6).**  Canon 8G*** says that a retired judge subject to assignment is not required to comply with the Canon 5F**** provision that a judge should not practice law (with exceptions that do not apply). However, the principles stated in the headings of Canons 2 and 5,* and the specific provisions of Canon 2B and Canon 5C (1) and (6),** do apply to retired judges subject to assignment.

A retired judge subject to assignment should avoid the appearance of impropriety (Canon 2), and should minimize the risk of conflict with judicial duties (Canon 6). A judge should not use the prestige of judicial office to advance private interests. Canon 2B and Canon 5C(1)** provide that a judge should refrain from financial and business dealings that (a) tend to reflect adversely on the judge's impartiality, (b) interfere with the proper performance of judicial duties, (c)exploit the judge's judicial position, or (d) involve the judge in frequent transactions with lawyers or persons likely to come before the court on which he or she serves. The words "financial and business dealings" include the practice of law. Opinion 132. Canon 5C(6)** provides that a judge should not use or disclose for any nonjudicial purpose any information that the judge acquires in a judicial capacity. These provisions impose on a retired judge who is subject to assignment the duty to observe rather strict limitations in any law practice in which the judge engages.  Paragraph (3) discusses one example.

     (3) Use Judicial Title in Law Practice.  No. The use of the title "Judge" or "Justice" on letterhead, in directories, or in any other public way would at least give the appearance of using judicial prestige for private advantage and of exploiting the judge's judicial position. See Opinion 102, which concluded that a retired judge would violate Canon 2B by using the prestige of the judge's former title to advance the private interest of a law practice. (That judge was not subject to assignment, but at that time the same Code provisions applied to all retired judges.) See also Opinions 67 and 128. (In Op. 128 the reference to Canon 3B should say 2B).

     (4) Be "Of Counsel" To a Business. Yes, subject to the limitations stated above in sections (1), (2), and (3). The Committee notes that Opinion 87 is no longer useful. The statute headed "Ineligibility to Practice Law", which was cited in Opinion 87, has been repealed.

b.  Other than in Law Practice, Use Former Judicial Title in Directories, on Stationery or Business Cards.

     (l) For Judicial Purposes.  Yes. In official judicial correspondence and cards, and in law directories, a retired judge subject to assignment may be identified as a retired judge or justice. Opinion 128.

     (2) For Business and Social Purposes.  Yes, but subject to the pertinent provisions of Canons 2B and 5C(1).** For personal business and social correspondence and cards, and in business and social directories, the Code of Judicial Conduct does not prohibit the use of the title "Judge" or "Justice". However, Canon 2B provides that a judge should not use judicial prestige for private advantage, and Canon 5C(1)** provides that a judge should refrain from financial and business dealings that tend to exploit the judge's judicial position. A judge should avoid any use of judicial title that would give the appearance of using the prestige of judicial office for private advantage, or of exploiting the judge's position. See Opinion 137, Question 1.

c.  Political Activities.

     (1) Publicly Endorse, or Work on Campaign for, Another Candidate for Office.  No. Canon 7(3),*****  which applies to retired judges subject to assignment, provides that a judge shall not authorize the public use of the judge's name to endorse another candidate for any public office. Such a judge's endorsement of another candidate, or participation in another's campaign, would be inconsistent with the principles stated by Opinions 145, 136, 130, 100, 92, and 73.

     (2) Work on a Political Campaign for a Party or Issue.  Only to the extent permitted by Canon 7(3),***** which provides that a judge may indicate support for a political party, attend political events, and express the judge's personal views on political matters. Other Code provisions preclude campaign work other than that expressly permitted by Canon 7(3).*****  A judge should promote public confidence in the impartiality of the judiciary (Canon 2A), and should be and appear to be (Canon 2) unswayed by partisan interests or public clamor. Canon 3A(1).******  A judge may not serve as an officer, director, trustee, or advisor of an organization if it is conducted for the political advantage of its members. Canon 5B.*  A judge should not use or appear to use judicial prestige for the benefit of others. Canon 2B.

d. Raising Money for Charities.  No. Canon 5B(2),******* which applies to retired judges subject to assignment, provides that a judge shall not solicit funds for any charitable organization. See Opinions 150, 131, 110, 60, 59, 51, 41, 25, 16, 11, and 10.

e.  Activities Governed by Law

     (1) Perform Weddings;

     (2) Administer Oaths;

     (3) Disregard Financial Disclosure Requirements.

As these activities are governed by rules of law, it would not be appropriate for this Committee to undertake advisory opinions concerning them, either as to retired judges who are subject to assignment or as to those who are not. See Opinion 127, last paragraph.

QUESTION 2: May a retired judge who is not subject to assignment do the things listed in question 1?

ANSWER TO QUESTION 2: (Retired Judges Not Subject to Assignment):

As Canon 8,** headed "Compliance with the Code of Judicial Conduct" now imposes no specific responsibilities on retired judges not subject to assignment, the Code does not prohibit such judges from engaging in any of the activities listed under Question 1. Opinions 15 and 32 no longer apply to retired judges not subject to assignment, because when those opinions were issued the Code compliance provisions imposed substantially the same requirements on retired judges who were not subject to assignment and on those who were.

The right of retired judges to practice law is a law issue on which the Committee expressed no opinion, but the Committee does note that the statutory prohibition against appearing and pleading as an attorney does not apply to judges who do not choose to be subject to assignment. The Committee also notes again that the Legislature repealed the "Ineligibility to Practice Law" statute cited in Opinion 87.

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+Committee Footnote: A February 10, 1988 Supreme Court Order deleted from Canon 5B(2) the word "political", thereby resolving the previous conflict between Canon 5B (a judge may not be an officer of an organization conducted for political advantage) and Canon 5B(2) (a judge may be an officer of a political organization)....

* Now see Canon 4.

** Now see Canon 4D.

*** Now see Canon 6F.

**** Now see Canon 4G.

***** Now see Canon 5(3).

******Now see Canon 3B(2).

******* Now see Canon 4C(2).

COUNTY JUDGE'S ADMINISTRATIVE ROLE

Opinion No. 156 (1993)

QUESTION: May a constitutional county judge accept a seven day expense paid trip to a foreign country to tour the facilities and meet representatives of a corporation that is building a large industrial facility in his county?

FACTS: ln addition to judicial responsibilities, the county judge is the presiding officer of the commissioners court and his duties include representing the county at ceremonial functions and promoting economic development. The corporation is requesting a tax abatement from the county. The judge's judicial responsibilities include presiding in cases of probate, juvenile delinquency, misdemeanors, and civil dispute, none of which presently involve the interests of the corporation hosting the trip.

ANSWER: Yes. Canon 8A(4)* defines "County Judge" to mean the judge of the county court created in each county by article V, section 15 of the Texas Constitution. Canon 8C(1)** provides, "A county judge who performs judicial functions shall comply with all provisions of this code except he or she is not required to comply: (1) when engaged in duties which relate to the judge's role in the administration of the county ...." Traveling to meet with agents of a corporation building a large industrial complex and seeking tax abatement in his county are duties that relate to the judge's role in the administration of the county. Consequently, in performing those duties, the county judge is not required to comply with the code.